Wednesday, February 02, 2005

Georgia Tort Reform Update II...
From the Atlanta Journal Constitution: Senate OKs bill to reduce malpractice suits, cap awards
After hours of emotional testimonials and pointed name calling, a bitterly divided Senate on Tuesday approved legislation designed to reduce malpractice lawsuits against doctors and hospitals.

The 39-15 vote came shortly after MAG Mutual Insurance Co., which insures most of Georgia's doctors, agreed to roll back premiums by 10 percent if the legislation is signed into law and upheld on appeal. Such a rollback would amount to an annual premium savings of $20 million for insured Georgia physicians, the company said

Sen. Preston Smith votes yes on a version of Senate Bill 3 while talking to Sen. Steve Thompson. Smith sponsored the bill meant to reduce malpractice lawsuits, but Thompson opposed it. The tort reform bill now goes to the House.

A top GOP priority this session, tort reform now moves to the House, where Republicans are in the majority and expected to approve their own bill. House Majority Leader Jerry Keen (R-St. Simons Island) said Monday he will push for swift passage.

Senate Bill 3 includes a fiercely debated cap on jury awards for a malpractice victim's pain and suffering — beyond economic damages for medical bills and lost wages. The health care industry has said the cap is necessary to hold down insurance premiums. Consumer rights activists and trial lawyers countered that caps will prevent malpractice victims from being justly compensated and discourage lawyers from taking the cases.

Senate Judiciary Committee chairman Preston Smith (R-Rome), the lead sponsor of the legislation, said access to health care has become a crisis across the state. He noted there are no neurosurgeons on call from Macon to Jacksonville and that many obstetrician-gynecologists have stopped delivering babies as a result of rising insurance premiums.

In an ideal world, juries would be allowed to award malpractice victims as much as they deserve, Smith told his colleagues. "But it may not in practical reality work if we're losing access to health care in this state."
Glad to see that MAG mutual put their money where their mouth is.
As usual such debates can become emotional:
In a halting speech to his colleagues, Sen. Judson Hill (R-Marietta) said he knows firsthand what it's like to be a victim of a doctor's malpractice.

Often pausing to choke back tears, Hill recounted how his wife, pregnant with twin boys in December 1988, went into premature labor that he said should have been halted. She delivered the boys, but they died as he cradled them in his arms, Hill said.

"All too well, I know who has suffered at the hands of doctors," Hill said. "And I hope I'm the only one in this body who has such a tragic story."

Even so, Hill said medical malpractice reform is "desperately needed."

"Frivolous and wasteful lawsuits are literally choking our businesses to death," he said. Hill urged his colleagues to consider those who might die because some communities no longer have emergency rooms to treat them.

"We will not hear from people who died because there was no hospital nearby," he said.
The key provisions:

Cap jury awards for "noneconomic" damages — those for a victim's pain and suffering — at $250,000, or up to $750,000 if multiple defendants are held liable.The biggest benefit, according to some.

Encourage out-of-court settlements by making some parties pay their opponent's court costs and attorneys' fees if they could have settled the case early on but did not.The opposition has 30 days to respond. If they do not respond or decline and the award is less than 125% of the original offer, the side that declined the offer would be liable for attorney's fees.

Require extensive court hearings to determine what kind of expert testimony is allowed at trial.Mandates pre-trial hearing of expert testimony.

Allows juries to consider the wage-earning potential of nonworking spouses and infants who are victimized by medical malpractice. Fair since one objection to "non-economic" caps has been that these groups are discriminated against.

Require doctors to report to the Composite State Board of Medical Examiners any judgment or settlement involving allegations of malpractice. The board also must assess a doctor's license to practice if the doctor has been disciplined three times in the past 10 years. This would be stricter than the current system. The CSBME now only requires settlements of over $100,000 to be reported.

Discourage lawyers from venue shopping to get jury pools more favorable to plaintiffs.

Require juries to precisely apportion damage awards in multidefendant casesA much needed reform of the "joint-and-several liability" law.

In addition there is an "apology provision":
The General Assembly finds that conduct, statements, or activity constituting voluntary offers of assistance or expressions of benevolence, regret, mistake, error, sympathy, or apology between or among parties or potential parties to a civil action should be encouraged and should not be considered an admission of liability. The General Assembly further finds that such conduct, statements, or activity should be particularly encouraged between health care providers and patients experiencing an unanticipated outcome resulting from their medical care. Regulatory and accreditation agencies are in some instances requiring health care providers to discuss the outcomes of their medical care and treatment with their patients, including unanticipated outcomes, and studies have shown such discussions foster improved communications and respect between provider and patient, promote quicker recovery by the patient, and reduce the incidence of claims and lawsuits arising out of such unanticipated outcomes. The General Assembly therefore concludes certain steps should be taken to promote such conduct, statements, or activity by limiting their admissibility in civil actions.

The exemptions for emergency treatment were removed but could be a part of the house bill.
The full text of the bill may be found here.
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